Market Alternatives for Food Safety

Most Americans go about their daily lives convinced that the Federal government, through the auspices of the Department of Agriculture, protects them from eating poisoned food. If not for the USDA or the Food and Drug Administration, they imagine, every food item on the store shelf would be suspect. Restaurateurs would unwittingly sell E. coli-infected meat and produce to their customers on a daily basis, and the simple act of eating would become like a game of Russian roulette. But what if that protection was largely an illusion? What if there were other simpler, quicker, and more efficient alternatives to food safety than the USDA? Would it not be sensible to abandon this outdated bureaucracy in favor of these alternatives?

In fact, evidence is emerging that government institutions that were once heralded as protectors of the consumer have failed to adapt effectively to contemporary problems in food safety. Instead, an unlikely alliance of private consumer protection groups, scientists, and lawyers has come forward to respond to this issue. These private individuals are investing their own time and resources to hold the food industry accountable—a task that proponents of the USDA and the FDA have long discounted as being too large for non-governmental entities to handle.

Andrew Scneider, investigative journalist and author of Cold Truth, recently profiled a leading food safety lawyer named William Marier. Since the Jack in the Box outbreak of 1993, Marier has acted on behalf of consumers to expose food contaminants in the marketplace. For the past several years, food safety experts and food scientists have alerted Marier to the danger of strains of non-O157 E. coli (O157 was the type of E. coli that contaminated Jack in the Box beef). The USDA currently considers E. coli O157 to be an adulterant, but has denied that any other strain presents a risk to consumers. Marier spent over $500,000 to have commercial meat tested for non-O157 strains and found that nearly 2 percent of the tested meat contained the bacteria, amounting to millions of pounds of potentially contaminated meat on the market.

By threatening legal recourse, Marier’s coalition of food experts have stumbled on an interesting alternative to government regulation, even if their ultimate goal is to convince the USDA to regulate non-O157 E. coli. Marier told Andrew Scneider that, “From a legal perspective, it doesn’t matter whether the pathogen is considered an adulterant or not. If the injured party is sick and we can prove the source of the pathogen, they can still sue . . . . The reality is that the easiest way for the industry to make sure that I don’t make a penny from their shortcomings is to not poison people in the first place.”

Marier is right: he makes no money at all if the food industry simply gets food safety right the first time. If a company in the industry fails to get it right (and experience teaches us not everyone will), legal recourse is a powerful tool to make sure they prevent bacterial contamination in the future. If not, their companies will suffer the same fate as Jack in the Box after the 1993 E. coli outbreak. The fear of reprisals in the form of lawsuits and loss of business, and even bankruptcy resulting from a combination of the two, are powerful motivators.

Critics of free market solutions to food safety often blame profit motive for compelling the industry to lower safety standards, and they view the Federal government as a disinterested party with nothing more than the public’s welfare in mind. This characterization puts a lot of faith in the benevolence and incorruptibility of Federal employees, but the alternative of legal recourse requires no faith at all in the motivations of lawyers like William Marier. Even if pure financial gain is the inspiration behind Marier’s investigation of non-O157 E. coli, it is an example of the profit motive working in the interest of public safety.

In some instances, government regulations impede the ability of the food industry to get food safety right at the ground floor. In Fast Food Nation, Eric Schlosser briefly touched on irradiation—a process by which newly slaughtered meat (or other foodstuffs) is bombarded with a low level of radiation, which destroys the ability of microorganisms to reproduce. Newer methods use conventional electricity instead of radioactive isotopes. Both the American Medical Association and the World Health Organization have determined that irradiated food is safe to eat. The UDSA, however, requires that all irradiated meat carry special labels featuring the international symbol of radiation, something that consumers would avoid like the plague. The USDA has been unresponsive to efforts by the Beef Industry Food Safety Council to change these regulations so that it would be worthwhile to implement this effective and safe technique.

The USDA does not always get food safety right at the ground floor, either. Schlosser documented a case in 1999 in which the USDA continued to purchase thousands of tons of meat from Supreme Beef Processors for distribution in public schools, even though the USDA’s own tests showed that nearly 47 percent of the company’s ground beef was contaminated with Salmonella. After a protracted legal battle over the viability of the company’s processing plant in which further tests detected the presence of O157 E. coli, the USDA resumed purchasing ground beef from the company. It took nearly a year after the initial round of failed tests at the processing plant for the USDA to finally issue new rules on testing ground beef for use in public schools.

It is wrong to believe that agents of the USDA can be everywhere at once responding to every threat to food safety. Rather, through personal vigilance, consumer activism, whistleblowing, investigative journalism, and legal action, the public can be its own regulatory body. The food industry may be driven by profit to fill a need for inexpensive food, but the people who own and manage the companies that make up the industry, along with their employees and all of their children, must eat the same food as everyone else. Therefore, it is in our interest to work with those companies to find ways of insuring food safety, which means bringing a wide variety of tools to the negotiating table. The marketplace, rather than the government, will always be more innovative in providing those tools.

Michael Kleen is the Editor-in-Chief of Untimely Meditations, publisher of Black Oak Presents, and proprietor of Black Oak Media. He holds a M.A. in History and a M.S. in Education, and is the author of Statism and its Discontents, a collection of columns on the topics of Statism, liberty, and their conflict. His columns have appeared in a variety of publications and websites, including Strike-the-Root.

Michael, just as Hoppe pointed out in "Myth of National Defense" regarding the inability of the government to protect (it actually does the opposite), you are correct about their role in the food-making industry.